Citation Nr: 9901024
Decision Date: 01/15/99 Archive Date: 01/22/99
DOCKET NO. 94-25 249 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to service connection for post-traumatic
osteoarthritis of the spine.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
M. E. Larkin, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1944 to December
1945.
This matter was initially before the Board of Veterans’
Appeals (Board) on appeal from a November 1993 rating action
of the Buffalo, New York Regional Office (RO) of the
Department of Veterans Affairs (VA), which determined, among
other issues, that the veteran had not submitted new and
material evidence to warrant reopening a claim of service
connection for bilateral high frequency sensorineural hearing
loss, and which denied service connection for post-traumatic
osteoarthritis. The veteran submitted a notice of
disagreement (NOD) in February 1994 and the RO issued a
statement of the case (SOC) in March 1994. The veteran's
substantive appeal was received in May 1994.
In August 1996 the Board determined that new and material
evidence had not been submitted to justify reopening the
previously denied claim of service connection for hearing
loss and remanded the issue of entitlement to service
connection for post- traumatic osteoarthritis. At that
time, the Board noted that the veteran had raised a claim of
service connection for bilateral tinnitus; however, the RO
had failed to address that issue and it was referred to the
RO for proper development. By a February 1998 rating action,
the RO granted service connection and assigned a 10 percent
rating for tinnitus. Both the Informal Hearing Presentation
prepared in October 1998 and a July 1998 Statement of
Accredited Representation in Appealed Case in Lieu of VA Form
646 offer argument on the issue of service connection for
hearing loss, citing in part the recent grant of service
connection for tinnitus. As noted, the Board determined in
August 1996 that new and material evidence had not been
submitted to reopen the claim of service connection for
hearing loss. That decision is final. The Board construes
the representative’s arguments as requests to reopen that
claim. Therefore, the issue of whether new and material
evidence has been submitted to reopen the claim of service
connection for hearing loss is referred to the RO for
appropriate action.
REMAND
The Board in August 1996 noted that the October 1994 VA
examination was inadequate because it failed to indicate the
etiology of the veteran's spinal arthritis. The veteran had
been diagnosed as having osteoarthritis of the spine, and had
been granted service connection for post-traumatic arthritis
of the feet. It was further noted that the veteran appeared
to have raised the issue of service connection for
osteoarthritis of the spine as secondary to the service-
connected post-traumatic osteoarthritis of the feet.
The Board remanded the case in August 1996 for an examination
and medical opinions and for the RO to give consideration to
38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439 (1995).
From a review of the record, including the supplemental
statements of the case (SSOC) issued in March and May 1998,
it is apparent that the RO did not consider 38 C.F.R. § 3.310
and Allen.
A remand by the Board confers on the claimant, as a matter of
law, the right to compliance with the remand orders. Stegall
v. West, 11 Vet. App. 268 (1998). Where the remand orders of
the Board are not complied with, the Board itself errs in
failing to insure compliance. As such, the Board finds that
the case is not ready for appellate review and must be
remanded for further development.
The RO should review the record with
consideration of 38 C.F.R. § 3.310 and
Allen and if the denial of service
connection for post-traumatic
osteoarthritis of the spine is continued
it should issue a supplemental statement
of the case which includes the criteria
of 38 C.F.R. § 3.310 and Allen with the
reasons and bases for the denial. The
veteran and his representative should be
furnished a copy of the supplemental
statement of the case and given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
E. M. KRENZER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
- 2 -